Yule v Smith (No 2)

[2012] NSWCA 301

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Yule v Smith (No 2) [2012] NSWCA 301

Hearing dates:

On the papers

Decision date:

21 September 2012

Before:

Macfarlan JA at [1]
Sackville AJA at [2]

Decision:

1. Pursuant to UCPR r 36.16(1), the orders made on 27 June 2012 are varied to include the following orders:

    3A The motion filed by the respondent on 13 August 2010 ("Motion") be dismissed.

    3B The respondent pay the appellant's costs of the Motion.

2. The respondent pay the appellant's costs of her motion filed on 10 July 2012.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Legislation Cited:

Uniform Civil Procedure Rules

Cases Cited:

N/A

Texts Cited:

N/A

Category:

Procedural and other rulings

Parties:

Beverley Anne Yule (Appellant)

Darcy Peter Smith (Respondent)

Representation:

Counsel:
Louise M. Byrne (Appellant)
E. C. Muston (Respondent)
Solicitors:
Malouf Solicitors (Appellant)
Brown Abrahams Burreket (Respondent)

File Number(s):

2008/278833

 Decision under appeal 

Citation:

Yule v Smith [2011] NSWSC 598

Date of Decision:

2011-06-22 00:00:00

Before:

Macready AsJ

File Number(s):

2008/278833

Judgment

1. MACFARLAN JA: I agree with Sackville AJA.

1. SACKVILLE AJA: On 27 June 2012, the court made orders allowing the appeal in this matter: Yule v Smith [2012] NSWCA 191. The Court set aside the orders made by the primary Judge on 10 August 2011 and ordered the respondent (Mr Smith) to pay the appellant's (Ms Yule's) costs of the appeal.

1. By notice of motion filed on 10 July 2012, the appellant seeks further orders. With slight modifications, these are as follows:

1. An order dismissing the motion filed by the respondent on 13 August 2010 ("Motion").

2. An order that the respondent pay the appellant's costs of the Motion.

1. The appellant's motion was filed within the 14 day period referred to in Uniform Civil Procedure Rules ("UCPR"), r 36.16(3A). The Court therefore has power to vary the orders under UCPR, r 36.16(1). The respondent is incorrect to submit the Court has no such power.

1. Since this Court delivered its judgment, Young JA has retired. The parties have consented to the appellant's motion being determined on the papers by the remaining members of the Court.

1. In her amended notice of appeal, the appellant sought the orders that she now seeks by way of notice of motion. Her written submission on the appeal referred to those orders.

1. It follows from the reasoning in the judgment of this Court that an order should be made dismissing the respondent's motion filed on 13 August 2010. The respondent did not advance any reason on the appeal why, if the appeal succeeded, an order should not also be made requiring the respondent to pay the costs of his motion in the Supreme Court.

1. This Court's failure to make the order sought by the appellant was due to an oversight.

1. The respondent in his written submission in response to the appellant's motion in this Court contended that he ought not be required to pay the costs of his motion in the Supreme Court. He says that there were issues determined in his favour by Macready AsJ that were not the subject of appeal or an aspect of which the appellant was unsuccessful on the appeal.

1. The hearing before Macready AsJ occupied only one day. It was exclusively concerned with the respondent's motion which, having regard to the decision on appeal, should have been dismissed. It is appropriate that the respondent be ordered to pay the appellant's costs of the motion filed by the respondent on 13 August 2010.

1. The following orders should be made:

1. Pursuant to UCPR r 36.16(1), the orders made on 27 June 2012 are varied to include the following orders:

3AThe motion filed by the respondent on 13 August 2010 ("Motion") be dismissed.

3BThe respondent pay the appellant's costs of the Motion.

1. The appellant's motion seeks an order that the costs of the motion be costs in the appeal. Since the respondent opposed the motion, the appropriate order is that:

2.   The respondent pay the appellant's costs of her motion filed on 10 July 2012.

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Decision last updated: 21 September 2012